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MICHAEL GILLESPIE v. COMMONWEALTH PENNSYLVANIA (02/28/86)

decided: February 28, 1986.

MICHAEL GILLESPIE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Michael Gillespie, No. K-5660.

COUNSEL

Michael Gillespie, petitioner, for himself.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 95 Pa. Commw. Page 321]

In this case, the Board of Probation and Parole (Board) has filed a motion to quash the petition for review*fn1 of Michael Gillespie (Petitioner) which asserts that the Board has unlawfully denied him the

[ 95 Pa. Commw. Page 322]

    right to be interviewed for release on parole. We will grant the Board's motion.

Petitioner's petition to us states that in January of 1985, while incarcerated at the State Correctional Institution at Dallas, he was given two misconducts for fighting and possession of a controlled substance as a result of which he was assigned to the restricted housing unit of the institution for 360 days. He further states that in July of this year he requested to be released to the general prison population and requested that he be interviewed for parole in September when his minimum sentence would expire. Both requests were denied by a parole officer. Petitioner was advised by the parole officer that prisoners are not eligible for release on parole while they are inmates in the restricted housing unit.

Petitioner contends that his request for parole has been arbitrarily and capriciously denied, that there is no statute, rule or regulation of the Board which authorizes the Board to deny parole applications solely because a prisoner is in a restricted housing unit and that he has a right to be interviewed by the Board at the expiration of his minimum sentence.

It is the Board's position that no application for parole had been filed with it, that it has six months to act on such applications when they are filed and that, in any event, the denial of petitioner's request for interview by the Board was within the Board's discretion which was reasonably exercised.

The matter is submitted to us on briefs.

The applicable statutory language is found in Section 22 of the Act of August 6, 1941 (Act), P.L. 861, as amended, 61 P.S. ยง 331.22 ...


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